Change Agents: A new wave of reform prosecutors upends the status quo
Nathan Myers’ letter had the same plea as hundreds of others mailed to the state attorney’s Conviction Integrity Review unit: I’m innocent, please investigate my case. It was 2017, and incoming Fourth Judicial Circuit State Attorney Melissa Nelson had announced plans to form the first prosecutorial review panel in Florida, with the goal of digging into claims of actual innocence in Duval, Clay and Nassau counties.
Myers was 18 when he was imprisoned for a 1976 homicide and attempted murder, and as prosecutors reviewed the case, it became clear the evidence did not support a conviction and that Myers had ineffective counsel. On March 28, Nelson signed off on a defense motion to vacate Myers’ conviction, and 43 years after his imprisonment, Myers was the first incarcerated man released in Florida after a prosecutorial review.
“I feel blessed to feel like someone was listening to me,” Myers said in a statement after his release. “I lost almost 43 years of my life that I can never get back, but I am looking ahead and will focus on enjoying my freedom with my family.”
The Gatekeepers
The fact that Myers is free at all is an example of the tremendous power prosecutors wield within the criminal justice system.
There are an estimated 2,400 prosecutors’ offices across the country. Within those offices, a single prosecutor has the ability to keep more people out of prison than an entire department of public defenders—through their ability to control outcomes.
Of all the cogs in the wheel, prosecutors are uniquely empowered to put the brakes on any case by making a critical decision: Do I release? Do I divert? Charge? Offer a plea?
“Prosecutors shouldn’t just accept the old model of auto-filing everything that comes to their doorstep and seeking the maximum penalty the law allows,” says Miriam Krinsky, a former federal prosecutor and founder of the Los Angeles-based nonprofit Fair and Just Prosecution. “That’s where we were in the ’80s and ’90s, and it simply didn’t work.”
To put this in perspective: About 95 percent of felony convictions are the result of a plea deal, with a prosecutor determining what to charge, sentence length and terms of supervision. Prosecutors also decide when and what evidence to turn over to the defense in a criminal case. Defendants have no right to discovery in plea bargaining. So in order to avoid harsher sentences, they often take deals that result in criminal records without ever seeing the evidence against them.
Marissa Alexander walks with her dad, Raoul Jenkins, surrounded by her legal team and supporters after her hearing in Jacksonville, Florida, in January 2015. Alexander, who claimed self-defense after prosecutors say she fired a gun at her estranged husband and his two sons, was released from prison as part of a plea agreement for time served. AP Photo/The Florida Times-Union, Bob Mack.
Because so many decisions are made outside of the public eye, the prosecutor’s office is often referred to as the “black box” of America’s criminal justice system. But a wave of new reformers are intent on letting in the light—through transparency, community engagement, and most important, regime change.
“We are seeing a generational change for sure,” says Besiki Kutateladze, a professor at Florida International University who conducts on-site research at prosecutor’s offices across the country. “There is greater pressure for transparency and accountability and to do something about racial and ethnic disparities and the burgeoning prison industry.”
A growing coalition working to end mass incarceration has begun targeting district attorney races—typically low-key affairs that heavily favor incumbents, with 85 percent of candidates running unopposed. When there are challengers, outcomes are often predictable—the tough-on-crime candidate, usually with the endorsement of the police union, takes over the office. But in recent years, activists realized that replacing the old guard could redefine criminal justice from the inside, and a concerted effort to flip DA’s offices around the country began. Since then, voters have elected dozens of progressive prosecutors, from Boston to Salt Lake City to Corpus Christi, Texas.
With public sentiment on their side, unlikely allies have poured tactical and financial support into the campaigns of reform-minded prosecutors who are focused on issues like ending cash bail, addressing sentencing disparities and engaging the community.
The Charles Koch Foundation is using data-driven policies to promote criminal justice reform, targeting it as a “holistic process” at every touchpoint of the system.
“We’re very focused on prosecutor issues as far as prosecutorial reform and the power of prosecutors, which has gone way too far one way,” says Mark Holden, senior vice president and general counsel of Koch Industries. “It’s a two-tiered system. If you’re wealthy, it goes one way, or it becomes a poverty trap.”
The conservative Koch brothers and liberal George Soros may make strange bedfellows, but the billionaires share a common philanthropic goal: dialing back America’s carceral state and instituting real criminal justice reform.
“There’s a unique alignment of the swords,” Krinsky observes. “People see we’ve wasted billions of dollars on prisons and jails and that prisons are exacerbating recidivism. I think we’re also in a moment in time where more and more parts of our community have been touched by the criminal justice system.”
Despite falling crime rates in recent years, communities of color continue to be overpoliced and overprosecuted, with well-documented racial disparities in arrests, charges and sentencing. Nationally, African Americans are incarcerated at nearly six times the rate of whites. One in three adults in the U.S. has a criminal record, a label with repercussions that will affect every aspect of their lives, including the ability to get housing and work.
“We look at the moral case, the constitutional case and the fiscal case,” Holden explains. “Before anyone is allowed in the state legislature or Congress to pass another punitive bill, they should go to prison and meet people in prison and talk to them. Most of the people in prison have been punished their whole lives up until going to prison. If all [a prosecutor] is going to measure is long sentences and how many people are locked up, does that make your community better?”
‘Several Points of Failure’
Jacksonville, Fla.—Marissa Alexander’s baby was eight days old when police came to the house she shared with her estranged husband, Rico Gray, and arrested her.
The two had argued when Alexander arrived to collect her things to move out. Fearful, Alexander fired a warning shot from her licensed handgun into the wall near Gray, who had a history of domestic violence. Gray called 911.
“I didn’t even think I would be arrested,” Alexander recalls. “I literally didn’t understand the process of what was going to happen. Not even when I went through booking and the officers were like, ‘You’re going to be here for a long time.’ I said, ‘Not me—for what? I didn’t have a clue.’ ”
In August 2010, Alexander was charged with three counts of aggravated assault with a deadly weapon. Fourth Judicial Circuit State Attorney Angela Corey rejected Alexander’s Stand Your Ground defense, which under Florida law would have shielded her from prosecution. Instead, Corey
decided to prosecute, and Alexander faced a sentence of up to 60 years.
Alexander received a 20-year prison sentence, but her conviction was overturned on appeal when a judge ruled the jury had received faulty instructions. Alexander struck a deal with the state and ultimately served three years, along with two years of home monitoring. She was released in January 2015.
“There were several points of failure,” Alexander says about her case. “I do not think they ever considered me to be a victim, and that starts with the actual officer. He was told what happened, he still decided I should be arrested, even after reading there was a restraining order.
“And the prosecutor at the time—to bring forth charges—there’s a prosecutorial power and a discretion, and this was an instance where it wasn’t applied properly.”
State Attorney Aramis Ayala, center, answers questions during a news conference. AP Photo/John Raoux
Alexander’s case was one of many out of Corey’s office that galvanized the public and made the state attorney a target. Jacksonville and the surrounding area is historically steeped in racial inequities and slash-and-burn “justice.” Among other notorious accomplishments, Corey regularly charged children as adults, led the state in incarcerations and had one of the highest rates of death sentences in the country.
But Alexander’s case was a tipping point, and in 2016, with the support of activists, Corey’s former employee Melissa Nelson swept the two-term prosecutor from office, marking the first time in modern history that a sitting state attorney in Florida’s Fourth Judicial Circuit lost a contested election.
‘i took a leap of faith’
At the Duval County Law Library, Nelson details the diversion programs her office is implementing to avoid the vicious cycle of fines and fees that can cripple poor defendants, and she talks about the new safeguards for juvenile offenders that allow children to avoid being processed through the system and incarcerated.
Nelson, a Republican who campaigned on reform, says she wants to increase transparency and let the public see the methodology and decision-making “even if they disagree.” Nelson says she encourages her lawyers to determine at the first decision point whether there are alternatives to incarceration that would be appropriate for any case. Nelson references evidence showing that every extra month in prison increases the risk of recidivism.
“We’re trying to bring broader thinking about what public health and public safety look like,” Nelson says. “Because every single decision has ancillary consequences. It’s not just, we’re going to decide if this person deserves five years in prison. Why do we think that? Is it because that’s what the guidelines tell us? Is it solely for punishment? Is it to incapacitate? What is the goal of the resolution we seek?”
Nelson worked as an assistant state attorney for years before leaving to enter private practice because she was “uncomfortable with the direction things were going.” She worked in the Jacksonville office of McGuireWoods and says she never intended on returning to public service.
“But there was a reputation the office was earning that really concerned me,” Nelson says. “I took a leap of faith, ran a really quick campaign. I cared very deeply about the office, I cared very deeply about the justice system, and I wanted to restore the confidence in the work of this office.”
One of Nelson’s first steps was to create the conviction integrity unit that reviewed Nathan Myers’ case. Nelson says she knows her office has a long way to go to build confidence in the community and deliver measurable reform.
“We did this because one of the things I ran on was restoring trust in the work that we do,” Nelson says. “If nothing else, we’re willing to take a look at our mistakes to ensure they don’t happen again.”
‘Your Client is Justice’
Orlando, Fla.—Just a two-hour drive from Jacksonville, in Orange County, Aramis Ayala represents one of the 1% of district attorneys across the country who are women of color. Her upset victory over the Democratic incumbent makes her the first African American state attorney in Florida’s history.
Ayala says she’s wanted to be a prosecutor for as long as she can remember. “It’s just something you’re born with. I don’t believe it’s something you’re taught,” Ayala says. “You believe in equality, you believe in level playing fields, and that was the one job I knew of at that time of my life—and quite frankly, at 44—still believe now is your only job. Your client is justice, your client is the community.”
After graduating from the University of Detroit Mercy School of Law, Ayala began her career as an assistant state attorney in Polk County, Florida. She left to work for the public defender’s office in Orlando, where she says she learned the human side of criminal cases—that they weren’t just files but about entire lives.
Ayala left government and worked briefly in the civil arena but says criminal justice was her calling. She returned to Orange County and worked for two years as an assistant state attorney. It was during this time Ayala realized the tremendous power prosecutors have to change lives through discretion, and in 2016 she launched her campaign.
“I needed to stand up and speak for the change,” Ayala says. “I ran for it—I put it all on the line.”
Just two months after taking office, Ayala made a bold announcement: Her office would no longer seek the death penalty, arguing it was costly, inhumane and did not deter violent crime or promote public safety. Reaction by the state’s Republican governor at the time, Rick Scott, was swift. In an unprecedented challenge to prosecutorial discretion, he issued a series of executive orders removing all death penalty-eligible cases from Ayala’s office, reassigning them to another county. Ayala sued, challenging Scott’s authority to remove cases from her jurisdiction, but she lost in the Florida Supreme Court. After the court’s decision, her office instituted a seven-attorney panel to review all first-degree murder cases to determine whether the death penalty would be appropriate.
“It’s just my hope at some point the facts and the research align with the law,” Ayala says about the court cases, noting the death penalty is a “failed system.” And despite a $1.3 million budget cut imposed on Ayala’s office after her battle with the governor, she continues to move forward with reforms, including units focused on domestic violence and human trafficking prosecutions, and Project No No, which diverts young offenders before arrest to avoid criminal records. Ayala says she’s focusing on data-driven policies, teaming up with the University of Central Florida and Harvard University to assess the impact of new programs and determine best practices.
Ayala, who wrote a chapter on the death penalty for an upcoming ABA book on prosecutorial discretion, has also instituted training for new prosecutors to give them court experience and real-life exposure: “If you have authority to send people to jail, you need to visit the jail, you need to visit juvenile detention facilities, you need to visit the prison. If you have authority to send people to death, you need to visit death row,” Ayala says.
Ayala is a cancer survivor—she nearly died from lymphoma while in law school. That experience is one basis for the fortitude and optimism that keep her fighting for what she believes in—justice, equality, progress—which she acknowledges won’t happen overnight. “I think we always have to be mindful that change is a challenge in and of itself, and change takes time.”
‘I Expected to Lose’
Philadelphia—Larry Krasner’s campaign started as a long shot. Krasner likes to recall how the local head of the Fraternal Order of Police called him a “liberal unicorn” and called his candidacy “hilarious.” When Krasner decided to run, he already had a prolific 30-year career: He’d been a public defender, he was a civil rights attorney, and he had sued the police 75 times. Krasner was intimately familiar with Philadelphia’s justice system, and says he “knew it was a mess.”
“I expected to lose, but I did my due diligence and I thought I had a chance of winning in a field of six or seven, which isn’t bad,” Krasner says. “So, I expected to lose, but I thought it was worth the fight.”
With the backing of the activist community and grassroots volunteers, Krasner won 75 percent of the vote.
When he got into office, Krasner instituted immediate reforms. He announced the office would no longer prosecute sex workers with fewer than three prior offenses; would not prosecute marijuana possession cases; and would not seek cash bail for low-level offenses. Krasner is also pushing to reduce supervision, which he says costs too much, stretches for too long and sets people up for failure. In Philadelphia, around half of the jail population is being held on a detainer for violation of probation or parole.
Supporters have applauded the moves and encouraged his office to go further. But Krasner faced pushback from the police. “At first I thought it was ideological—they’d endorsed Donald Trump in a city that’s 85 percent Democratic,” Krasner says. “But the more we looked at it, the more we realized it was about overtime. Police are paid a lot of money to go to court to testify. A senior member of the Philadelphia Police Department told me, ‘You have to take the profit out of policing.’ I think he got it right.”
Krasner’s office was part of an ongoing reform effort to close one of its county jails and reduce Philadelphia’s jail population from 6,500 to 4,700 in one year. Corrections officers weren’t happy. And when Krasner tried to reduce the misdemeanor caseloads of probation and parole officers so they could focus on violent offenses, he says there was reticence toward cooperation and reform—something he’s witnessed across the system.
“Once you build the monster, you have the monster, and the monster doesn’t want to shrink,” Krasner observes. “And the monster doesn’t want to diminish its power.”
Krasner calls it a potent “alchemy”’ of money, jobs and political power, mixed with patronage. “I think there’s a fear … of anything that would separate them from the valuable commodity of human bodies in their jail cells.
“To the extent we do things to shift resources into public education, economic development and treatment, we are affecting profit, and we are affecting money and what that money buys. And that is where we’re really starting to see a common thread of resistance.”
Despite this, Krasner has significant support for his agenda and has plowed ahead with plans in a manner some other elected prosecutors can’t.
“I do think part of the Philadelphia story is, yes, it’s a progressive town at this moment in its history, but I also think, as with some of these other jurisdictions where there’ve been victories, like St. Louis County with [prosecutor] Wesley Bell—there is a history of oppression that is real and that has its consequences.”
Neither Krasner nor Bell was expected to win, but: “It’s the kind of thing that happens when the people get ignored, and they get sick of it, and they take back their power, and that’s what’s happened,” Krasner says.
‘we’re not going to fail’
St. Louis—In August 2014, weeks of protests followed the shooting death of 18-year-old Michael Brown by a white police officer in Ferguson, Missouri, after video of the unarmed black teen face down in the street went viral.
Three months later, prosecutor Bob McCulloch announced the grand jury had declined to indict officer Darren Wilson in Brown’s death. The decision was met with more demonstrations, but those familiar with justice in St. Louis County weren’t surprised by the report from the prosecutor, who had just been elected to his seventh term.
A Department of Justice investigation under President Barack Obama declined to find civil rights violations but issued a scathing report that held the Ferguson Police Department accountable for a sustained and egregious pattern of racial profiling and abuse. Wesley Bell, a Ferguson city councilman, worked with the DOJ on the federal consent decree to reform the police department. That’s when he began thinking seriously about running for prosecuting attorney of St. Louis County.
“I always thought, ‘I would never want to work in this office. I want to run this office,’ ” Bell says.
Bell—who had worked as a public defender, a municipal court prosecutor and a municipal judge—launched an underdog campaign that quickly captured public support.
“What we saw when we knocked on thousands of doors, what we saw in every corner of this county, was people who just wanted to be treated fairly—people who just wanted a fair shake,” Bell says.
Bell’s campaign steadily gained momentum, and he beat McCulloch in the Democratic primary in August 2018.
“You don’t need the entire city to win the DA’s office,” notes Adam Foss, founder of the training and advocacy group Prosecutor Impact. “If you are motivated enough and have the grassroots relationships to make it work, you can take an election and surprise everyone.”
But not everyone was pleasantly surprised. In St. Louis County, a long history of “law and order” prosecutors working in tandem with police departments had blurred the line of agency independence. The result: Attorneys in Bell’s office voted to join the St. Louis Police Department’s union days before he took the oath of office.
“Change always is scary,” Bell says. “You have, for example, individuals who have made their career being promoted, taking care of their families based on a way of doing things. When someone comes in disrupting that—that can be scary to some people.”
***
It’s nearing 4 p.m., and Wesley Bell is huddling with staff at his office conference table for a late-afternoon meeting to prepare a response to a national news story about the police efforts to organize the county prosecutor’s office.
“They have the right to organize,” Bell says. “Our concern is the choice of union. It’s a concern because, as prosecutors, one of our roles is to serve as a check on law enforcement.”
County civil service rules have made it difficult for Bell to replace many of the old guard attorneys in his office, so a realignment of values to focus on reform has been an ongoing process. But business as usual is not an option for Bell as he continues to roll out reforms. One of his first acts was to end cash bail requests for misdemeanor cases, and his office will no longer prosecute possession of less than 100 grams of marijuana. Other priorities include expansion of the county’s diversion and treatment programs for drugs and mental illness, along with the veterans and DWI courts. Bell says “tough on crime” hasn’t worked—he wants his office to be smart on crime.
“The criminal justice system is broken, and it needs to be reformed, it needs to be changed,” Bell says. “And myself, my team, this office will be a change agent. And so the policies we researched are on mission—everything we do is of the mind of creating a fair and equitable justice system. That’s how I measure success. And the lack of that will be considered failure. And we’re not going to fail.”
The Future of Reform
Irrespective of the politics on the ground, criminal justice reform has crossed party lines as politicians, philanthropists and activists direct time and resources at an intractable issue that affects communities everywhere.
Concerted, coordinated efforts propelled dozens of reform prosecutors into office in cities and counties across the country. But after the first wave—what’s next?
What’s clear is, despite measurable success and bipartisan buy-in, there’s no silver bullet.
There is hope that progressive change in pockets across the country will have a trickle-down effect, impacting the culture globally. But others worry that enclaves of reform don’t reflect what’s happening on the ground in hundreds of prosecutors’ offices, large and small, in jurisdictions that aren’t facing the same pressure to transform.
“Really, those rural places suffer from injustice even more,” notes Prosecutor Impact’s Foss. “Poor whites, immigrants, natives. Using new language why reform is necessary—safety, economy, redemption, forgiveness, Christianity. There are ways to talk about this issue in a way that’s appealing to those people who are feeling those effects.
“This is happening everywhere —it’s a natural evolution. You have to understand and speak the language that people can get behind. This is about victims and safety and communities.”
Michael Moore, state’s attorney in Beadle County, South Dakota, and co-chair of the ABA Criminal Justice Section’s Prosecution Function Committee, says he’s seen ideas that appeared radical 10 years ago to many small-town prosecutors—such as diversion programs—become mainstream. He believes education and training are key.
“I think how a prosecutor views what a positive result is, is different now,” Moore says. “A lot of prosecutors before thought the only positive result is a conviction, and a conviction on the maximum charge. Some still think that. But it’s becoming more debated. We can do some things differently that keep public safety in mind but maybe are better for that particular defendant in that particular case.”
In addition to prosecutorial reform, advocates are urging change at the legislative level through aggressive decriminalization efforts and winnowing down chargeable offenses. Others argue that instead of attempting to reform prosecutors’ offices, the goal should be to limit their power and make them more accountable under the law.
“No one mechanism is going to be effective on its own,” says FIU’s Kutateladze. “There has to be community pressure, political pressure, funders need to continue their work, researchers need to provide meaningful assistance to prosecutorial offices. My limited experience shows me all that can make a difference. But it takes awhile.”
Expectations for the new crew of reformers may be unfairly high, but as decades of cultural inoculation about how we “do” justice in America steadily crumble, most activists in the trenches are bullish on the future.
“I am a believer in dramatic change,” Fair and Just Prosecution’s Krinsky says. “At times, one should proceed with caution and not set the house on fire, but we also need to realize a lot of those rooms are burning right now. I believe elected DAs can do some pretty dramatic things pretty quickly. They have the wind of reform at their back.”
